Erdman v. Condaire, Inc.

• Decision Date: 03 December 2002
• Docket Number: No. ED 80447.,No. ED 80448.,ED 80447.,ED 80448.
• Citation: Erdman v. Condaire, Inc., 97 S.W.3d 85 (Mo. App. 2002)
• Parties: Todd ERDMAN and Tracy Erdman, Plaintiffs/Respondents, v. CONDAIRE, INC., and Sachs Electric Company, Defendants/Appellants.
• Court: Missouri Court of Appeals

97 S.W.3d 85

Todd ERDMAN and Tracy Erdman, Plaintiffs/Respondents, v. CONDAIRE, INC., and Sachs Electric Company, Defendants/Appellants.

No. ED 80447.

No. ED 80448.

Missouri Court of Appeals, Eastern District, Division One.

December 3, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2003.

Application for Transfer Denied March 4, 2003.

James E. Whaley, John P. Rahoy, T. Michael Ward (Condaire), Ruth A. Przybeck (Sachs), St. Louis, MO, for appellants.

Daniel T. Ryan, St. Louis, MO, for respondents.

ROBERT G. DOWD, JR., Presiding Judge.

Plaintiffs, Todd Erdman and his wife, Tracy Erdman, brought a suit against Condaire, Inc., and Sachs Electric Company to recover damages for injuries Todd Erdman sustained in a fall through an opening in the floor of a building under construction. The jury returned a verdict in favor of Todd Erdman for $700,000 and Tracy Erdman for $235,000 on her separate consortium claim. Condaire, Inc., and Sachs Electric Company appeal contending the Plaintiffs failed to make a submissible case, instructional error, and error for failing to conduct a hearing to determine whether two jurors intentionally failed to disclose information during voir dire. Because we find the Plaintiffs failed to make a submissible case, we reverse and remand with instructions.

The facts may be summarized as follows: Todd Erdman (Erdman) was employed by Interior Construction Services (ICS) as a carpenter. During July of 1998, ICS was one of several subcontractors engaged in a two-level expansion project at Sigma Chemical Company (Sigma). Sigma had entered into a construction management contract with Fru-Con Construction Company (Fru-Con) making Fru-Con the general contractor for the construction. As general contractor, Fru-Con agreed to be responsible for general safety at the construction site. As part of its responsibilities, Fru-Con entered into subcontracts with Condaire, Inc. (Condaire), and Sachs Electric Company (Sachs) to install load cells on the vessels that would ultimately house chemicals. As part of their agreement, Condaire and Sachs contracted to take the necessary precautions to avoid injuries to other workers and barricade all floor openings resulting from their work.

When construction began at the Sigma plant, Fru-Con arranged to have the cement subcontractors pre-form large holes in the plant floor to accommodate the vessels with three legs and install a four-inch steel kick plate around the openings. The opening in which each tank was placed appeared as a large circle for the vessel with three rectangular holes along the perimeter for the feet and load cells. Under the three legs of each vessel, there was to be an electronic weighing device called a load cell. Fru-Con ordered that all floor hole penetrations on the project be covered. Fru-Con carpenters fabricated and installed wooden plywood covers. Fru-Con also ordered that all vessels be covered with opaque tarps to protect them. Fru-Con also conducted several daily safety inspections. After the vessels were installed, Condaire worked with Sachs to place the load cells in each of the feet. The installation of the load cell in the reactor room where the accident took place was completed on June 23, 1998.

On July 16, 1998, Erdman arrived for work at the Sigma plant. He was taken to the reactor room where ICS would be working that day. Erdman saw a tarp draped over the vessel that occupied the room, and that the tarp extended onto the floor. Erdman was carrying materials back and forth to a co-worker. On one trip, Erdman stepped on the tarp and his right leg went into the space between the load cell and the foot of the vessel causing him to fall hitting his groin area on the steel kick plate outlining the hole. In his fall, Erdman severed his urethra, for which he later underwent reconstructive surgery. Upon investigation, Fru-Con discovered the wooden cover that should have been placed over the load cell area standing against a wall about fifteen feet from the load cell area.

Erdman and his wife Tracy Erdman filed a negligence suit against Condaire and Sachs claiming that one or both of the Defendants removed the wooden cover from the load cell opening, failed to replace the wooden cover over the load cell opening, and/or failed to warn Erdman about the load cell opening.¹ Tracy Erdman also filed a loss of consortium claim. The jury awarded Erdman $700,000 and Tracy Erdman $235,000 on her separate consortium claim. Condaire and Sachs filed motions for judgment notwithstanding the verdict and alternative motions for new trial and remittitur and several other post-trial motions. The trial court denied all post-trial motions. Both Condaire and Sachs filed notices of appeal and their appeals were consolidated.

Because Condaire and Sachs's points on appeal are substantially similar, we will address them together. In its first point, Condaire contends the trial court erred in denying its motion for judgment notwithstanding the verdict because Erdman failed to make a submissible case. Sachs argues the trial court erred in denying its motion for directed verdict because Erdman failed to make a submissible case. Specifically, both Condaire and Sachs argue they did not have a duty to Erdman at the time of his injury as subcontractors because they did not create the dangerous condition or have responsibility for and control over the load cell area.

The standard of review of a trial court's denial of motions for directed verdict and judgment notwithstanding the verdict are treated the same and the primary inquiry is whether the plaintiff has made a submissible case. Vintila v. Drassen, 52 S.W.3d 28, 38 (Mo.App. S.D.2001). To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo. App. E.D.2000). Whether evidence in a case is substantial and whether inferences drawn are reasonable are questions of law. Id. at 339.

In determining whether a plaintiff made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. Id. We will presume the plaintiffs evidence is true and disregard any of the defendant's evidence that does not support the plaintiffs case. Id. We will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Id. We do not supply missing evidence or give a plaintiff the benefit of unreasonable, speculative, or forced inferences. Id. A party is bound by the uncontradicted testimony of the party's own witness, including that elicited on cross-examination. Simpson v. Johnson's Amoco Food Shop, Inc., 36 S.W.3d 775, 776 (Mo.App. E.D.2001); Eidson v. Reproductive Health Services, 863 S.W.2d 621, 626 (Mo.App. E.D.1993).

In any negligence action, the plaintiff must establish the existence of a duty on the part of the defendant to protect the plaintiff from injury, failure of the defendant to perform that duty, and that the plaintiff's injury was proximately caused by the defendant's failure. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998). Here, to recover on his negligence claim, Erdman had to show, by substantial evidence, that Condaire and Sachs owed him a duty at the time of his injury. Condaire and Sachs maintain Erdman failed to satisfy this element because they were not under a duty to make the load cell area safe for Erdman at the time of his injury in that they did not create the dangerous condition, and they had no responsibility for and control over the area in which Erdman was injured.

Generally, the general contractor occupies the position of a possessor of the property in relation to persons on the land while the work is in the contractor's charge and has a duty to use ordinary care to prevent injuries to invitees. Wilson v. River Market Venture, I, L.P., 996 S.W.2d 687, 693-694 (Mo.App. W.D.1999). In contrast, a subcontractor does not stand in the shoes of the landowner for the purposes of determining liability for any injury on the premises during the course of construction. Id. at 696.

In determining whether Erdman made a submissible case under subcontractor liability we must determine the duty Condaire and Sachs owed to Erdman at the time of the injury. Condaire and Sachs rely on Mino v. Porter Roofing Co., 785 S.W.2d 558 (Mo.App. W.D.1990) to argue they did not owe a duty because they did not create the dangerous condition, and they had no responsibility for and control over the area in which Erdman was injured. Erdman relies on Killian v. Wheeloc Engineering Co., 350 S.W.2d 759 (Mo. 1961) to assert there is no requirement to show Condaire and Sachs had control over the area where he was injured. We first must determine under these facts whether Mino or Killian applies.

Mino sets forth the general propositions that control the liability of subcontractors to employees of other contractors injured on a construction site:

The [sub]contractor is liable where he is in control of and has charge of the work and the dangerous condition is attributable to wrongful or negligent acts of his employees while the work is in progress. [citing case]. If the instrumentality causing the harm is under the control of the defendant [sub]contractor and the plaintiff is injured while in a work area common to employees, the defendant owes a duty of care to avoid causing such injury. [citing case]. A[sub]contractor who supplies equipment or devices which are to be used by employees of others on the construction job, owes a duty to make the device safe for its intended use. [citing case]. (Emphasis added.)

Mino, 785 S.W.2d at 561. In Mino, the defendant subcontractor was responsible for resurfacing a roof that had a preformed opening, which would later house air conditioning units. Id. at 559. At the time of the plaintiffs accident, the work was substantially complete. Id....